Bench Memos

Why Merrick Garland Should Be Campaigning for Senate Republicans

I haven’t blogged much in recent weeks for various reasons: lots of travel, other projects, and, yes, a mix of unhappy emotions over this dreadful presidential campaign.

Let me jump back in by addressing a question I’ve been getting at a lot of my speaking engagements: If Hillary Clinton is elected on November 8, would Senate Republicans try to confirm Merrick Garland?

The short answer is no way, unless President-elect Clinton asks them to do so. And the only plausible scenario in which she might make such a request is one in which Republicans retain control of the Senate, and even then I think it far from clear that she would do so.

My longer answer:

1. It’s 50-50 or better that Democrats will win control of the Senate in next month’s elections. (As I write this, 538.com puts the odds at 71.6%.) If they do, the Left will be clamoring for Hillary to dump Garland and nominate a younger, more “progressive” candidate.

In this scenario, even if Senate Republicans overwhelmingly wanted to confirm Garland (and it’s far from clear that would be the case), they couldn’t impose a Garland confirmation on Democrats. If President-elect Clinton says that she would like to decide whom to nominate, would Senate Democrats allow Republicans to confirm Garland? Wouldn’t they instead be eager to appease the Left and to make Republicans pay a price for their failure to act on the Garland nomination in the ordinary course? Among other things, Democrats could easily block a confirmation by filibuster. And even if Republicans somehow succeeded in confirming Garland, the subsequent act of presidential appointment would be needed to place Garland on the Court. Isn’t it far more likely that President Obama would preempt the entire process by stating that he would leave the vacancy to Clinton to fill?

For these and other reasons (including the bitter crossfire that would be occurring in the Republican party), I see zero prospect of a lame-duck Garland confirmation if Democrats win control of the Senate.

2. If Republicans retain control of the Senate, then there is one scenario in which Garland might be confirmed in the lame duck: if Hillary Clinton, in the immediate aftermath of the election, asks Republicans to go ahead and confirm Garland right away. Clinton could say to Republicans: “You said that the next president should make the pick. That’s me. I want Garland. Let’s get the Court up to full membership as soon as possible. So no need to await a formal nomination by me.” Although Senate majority leader Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley have previously ruled out a lame-duck processing of the Garland nomination, this specific request by a President-elect Clinton could be a game-changer.

Would a President-elect Clinton make such a request? Perhaps. On the one hand, there is ample reason to believe that Garland, who was a senior DOJ official in the Bill Clinton administration before Clinton appointed him to the D.C. Circuit, is well liked and respected by Hillary Clinton’s team. (Among many other things, one of Garland’s current clerks is the wife of top Clinton adviser Jake Sullivan.) Endorsing Garland would be the smoothest and quickest path to filling the pending vacancy and could earn Clinton some much-needed goodwill if she’s facing a Republican Senate (and House). On the other hand, would Clinton be ready to make a decision so promptly, especially given the time-consuming demands of all the other transition work? Would she be willing to take criticism from the Left?

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